HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.B.
Applicant
-and-
Children’s Aid Society of Toronto
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: A.B. v. Children’s Aid Society of Toronto
APPEARANCES
A.B., Applicant
Self-represented
Children’s Aid Society of Toronto, Respondent
James C. Dakin, Counsel
Introduction
1The applicant filed an Application on October 20, 2016, alleging discrimination with respect to goods, services and facilities because of race, colour, place of origin, citizenship, disability and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On March 2, 2017, the respondent filed a Response asking the Tribunal to dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of the Application pursuant to s. 45.1 of the Code.
3On May 30, 2017, the applicant filed his Reply.
4On June 27, 2017 the Tribunal issued a Case Assessment Direction indicating that the Tribunal had decided to hold a preliminary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that:
a. It appears that some of the allegations may be untimely;
b. There is no reasonable prospect that the Application or part of the Application will succeed; and
c. another proceeding has appropriately dealt with the substance of the Application.
5The Tribunal held the preliminary hearing on October 17, 2017.
anonymization
6At the core of this matter is a child. The Tribunal’s Practice Direction on Anonymization provides that the Tribunal will use initials in its decisions to identify children under age 18 and the next friend of a child under 18. Initials may also be used to identify other participants in the proceeding if necessary to protect the identity of a child (Rule 3.11.1). Consequently, the Tribunal uses initials to refer to any name that could identify the child.
Background
The Applicant’s Submissions
7The applicant self-identifies as Caucasian from Africa.
8The applicant’s story began on June 24, 2015 when his spouse gave birth to their baby boy. Between June 24 and June 26, 2015, mother and son stayed in the hospital and nurses looked after the newborn. During their stay in the hospital, the applicant alleges that no one from the medical staff or nurses noticed that the baby’s left leg was not moving and was considerably swollen. The applicant alleges that the baby was discharged from the hospital that way on June 27, 2015.
9The applicant explains that as new parents, they were so happy that they did not notice anything until June 27, 2015. The applicant recalls that on that day he noticed that the baby’s left thigh was larger than the right thigh. The applicant informed his spouse the next day. On June 30, 2015, the applicant and his spouse took their son to his first paediatrician appointment. The paediatrician told them that they should take their baby to The Hospital for Sick Children (“SickKids”) to get his leg examined.
10On July 3, 2015, the applicant and his spouse took their baby to SickKids where an ultrasound and an X-ray revealed a fracture. They were immediately admitted. The applicant alleges that the Suspected Child Abuse and Neglect (“SCAN”) team from SickKids called the Children’s Aid Society of Toronto (“Society”).
11The Society is a non-profit agency that provides child protective services in the Regional Municipality of Toronto pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended.
12The applicant maintains that on July 6, 2015, the Intake Worker for the Society attended at SickKids with the police. The applicant contends that without further information and details, the Intake Worker, based on her profiling techniques, assumed that the applicant and his spouse had something to do with the fracture. The applicant maintains that the Intake Worker said “where are you people from?” The applicant replied “We are from Africa. We are Caucasian but we are from North Africa”. To this the Intake Worker said “what languages do you speak?” and the applicant provided the information. The applicant maintains that after the interview the Intake Worker stated that there was no other option but to place the baby in foster care. The applicant submits that statistics show that children in foster care are more likely from Africa. The applicant also believes that being older and having no other family in Canada fits the Society’s profile of those who hurt their own babies.
13The applicant maintains that throughout the police interrogation on July 6, 2015, it was insinuated that he and his spouse may have something to do with the baby’s fracture.
14The applicant states that this caused his spouse’s blood pressure to reach a dangerous high for which she was prescribed high blood pressure medication. As a result, the applicant’s spouse could no longer breastfeed their baby.
15The applicant maintains that after the hospital visit on July 6, 2015, he and his spouse reviewed their video files of the birth and found that it appeared the fracture was caused by a negligent nurse after the birth. On July 7, 2015, the applicant informed the police of the video. The applicant contends that on July 8, 2015 he also offered to provide the video to the Society’s Intake Worker but she rejected it, saying “it is not important at this moment”.
16The applicant alleges that on July 8, 2015, the Society’s Intake Worker drafted a “voluntary written agreement” (“VWA”) that she asked the applicant and his spouse to sign. They did not sign the VWA as they were of the view that it was against the Society’s policies. The Intake Worker also set a court date of July 23, 2015 to address the situation. The applicant felt that the Intake Worker wanted to present them to the court as careless parents.
17The applicant alleges that the Society’s Intake Worker advised them that she would have to attend announced and unannounced visits at their home. She also advised colleagues to report any suspicious activities or departures from the country with the baby.
18The applicant alleges that the Society’s Intake Worker coerced him and his spouse to sign documents giving her access to confidential medical information. They agreed out of fear.
19The applicant maintains that on July 14, 2015, the applicant provided a copy of the video and photos to the police. On July 16, 2015, the police reviewed the video with representatives from the Society and SickKids and they shared their observations. Following this meeting and the review of the video and photos, the Society cancelled the court date and amended the VWA several times. The applicant maintained at the preliminary hearing that after that date, the Society treated him and his wife professionally and properly. The Intake Worker also began announcing her visits to the applicant’s home.
20The applicant alleges that the first VWA prepared on July 8, 2015 was racist by stating information irrelevant to the case as follows : “Mr. and Mrs. B immigrated to Canada from […] Mr. B is 50 and Mrs. B is 43”. The applicant and his spouse did not sign that agreement and the information was removed from later versions of the VWA.
21The applicant confirmed that on August 13, 2015, he and his spouse signed the August 5, 2015 VWA that had been drafted cooperatively with the Society. The VWA includes the following: “Mr. and Mrs. B welcome the Society’s worker attendance at their home from announced and unannounced home visits and Mr. and Mrs. B will work co-operatively with members of the Society such as Public Health and Home Visitor.”
22The applicant filed a complaint letter, dated August 27, 2015, with the Society on August 28, 2015 explaining his concerns about violations of the Society’s Anti-Oppression and Anti-Racism Policy, unlawful practice of social work, unjustified threats against his family and friends, breach of trust, failure to provide reasons for the Society’s discussions and the fact that the Society ignored his side of the story. The applicant attended an Internal Complaint Review Panel on September 9, 2015 and the Society issued a letter providing an overview of the proceeding and next steps on September 21, 2015.
23The applicant maintains that the Society closed their file on October 23, 2015 without telling him and his spouse. The applicant however submitted a letter dated October 23, 2015 from the Society informing him and his spouse that their file had been closed. The applicant also submitted a letter from the Society dated March 10, 2016, in which the Society re-sent the October 23, 2015 letter to the applicant and his spouse.
24The applicant maintains that the last incident occurred on November 20, 2015, when the Child and Family Services Review Board (“CFSRB”) ordered the Society to produce documents, more specifically a Safety Assessment dated July 7, 2015 and a Risk Assessment dated July 22, 2015. The applicant explained that he waited to file his Application because he was having difficulty getting the relevant documentation from the Society. The applicant states that he received the documents in January 2016.
The Respondent’s Submissions
25The Society submits that its investigation and assessment were conducted based on the following reasonable grounds:
a. On July 6, 2015, the SCAN team at SickKids made a call to the Society about a possible case of child abuse when they discovered that the applicant's two week old child had a broken femur.
b. The child was scheduled to be discharged from SickKids on July 7, 2015, leaving very little time for the Society to conduct a thorough investigation and confidently conclude that this was not a case of child abuse.
c. Given the urgency of the matter, the Society’s Intake Worker had to take immediate steps regarding the child’s care upon his discharge, including investigating whether the applicant and his spouse had any extended family or close friends who would be able to care for the child or provide supervision.
d. After watching a video footage taken by the applicant at the time of the child’s birth, the police determined that the child’s injuries were caused by a nurse while she was attempting to give him an antibiotic injection shortly after his birth. However, the SCAN team made a different assessment about the child’s injuries; they could not say with certainty, based just on the footage, that the nurse was responsible for the fracture.
26The respondent submits that the Society continued its investigation after the child’s discharge given his vulnerable age, the severity of his injury, and the absence of a conclusive explanation for the injury.
27The Society submits that during the investigation and assessment of these concerns, the Society’s Intake Worker and the Society:
a. Corresponded with the applicant and his spouse in a professional manner regarding their continued concerns or comments.
b. Shared each step of the investigation process.
c. Identified the strengths and needs of the applicant, a process that included collecting demographic information and social history, and enquiring about the applicant's formal and informal support systems.
28In addition, the respondent submits that the Intake Worker was responsive to the applicant's changes to the VWA and allowed the applicant an opportunity to consult his lawyer before signing the agreement. She responded professionally to the applicant's requested changes and drafted four versions of the agreement to produce an inclusive document that would reflect both the Society and the applicant's positions.
29The respondent submits that the Society, in keeping with its mandate, continued its investigation until it could ascertain that there was a supportive safety network, a clear safety plan, and a robust volunteer written agreement in place for the benefit of the child.
30The respondent submits the applicant's claim is based on a number of erroneous assumptions or beliefs that do not raise a prima facie case. These include but are not limited to the following references from the Application:
a. A bald statement that “there are no grounds” for the Society to have been working on the child’s case and that “fake reasons are artificially maintained in order to justify the waste of public resources”;
b. A bald statement that the Society’s Intake Worker, “based on her profiling techniques” alleged that the applicant or his spouse may have had something to do with their child’s injuries;
c. A bald statement that having to agree to be supervised by the Society from the time that the child was discharged from the Hospital until July 23, 2015 was “degrading and outright discrimination, racist and based on profiling and harassment”; and,
d. A bald statement, without any foundation, that the Society's workers used “threats, intimidation, discrimination, and harassment as a policy and were not operating within the law”.
31The respondent submits that the applicant has outlined details about the Society's investigation and made allegations of discrimination but he has not proposed any evidence that could reasonably show a nexus between the Society's alleged conduct and the Code grounds cited in the Application. The applicant merely states that he and his wife were treated unfairly because they were being discriminated against. Even if the applicant's rendition of the facts were to be accepted, it does not mean that they amount to a Code violation.
32The respondent argues that the crux of the applicant's allegations of differential treatment is based upon his own assumptions and conclusions and not on any objective evidence. For instance, the applicant concludes that differential treatment by the Society was due to the fact that he and his wife were immigrants, old, and did not have an extended family in Canada. Yet, there is no tangible evidence to support these inferences. The applicant was only able to point to the fact that these characteristics were included in the VWA, a collaborative agreement he was asked to participate in drafting. He does not offer any evidence indicating that these traits affected the Society's treatment of him or that the information was used and collected for any other purpose than to inform a proper assessment of the applicant’s case.
33The Society submits that although the applicant may have been unhappy with the investigation conducted by the Society or felt that it was unfair the applicant has failed to plead any material facts that would establish that the services were provided in a manner that was contrary to the Code.
34The respondent submits that the Application is untimely and that the applicant has not established that the delay was incurred in good faith.
35The respondent notes that on August 27, 2015, the applicant filed a complaint letter with the Society in which he alleges discrimination and that the Society was negligent in the way it investigated the case. The respondent submits that the letter includes the same facts as those included in the Application. The respondent argues that on August 27, 2015, the applicant had all the required information to file an Application with the Tribunal. The applicant’s explanation that he required further documents from the Society does not show that the delay in filing was incurred in good faith.
36The respondent maintains that the applicant filed an application to the CFSRB on September 28, 2015 for a review of the Society’s Internal Complaint Review Panel’s decision. The respondent submits that the issues before the CFSRB were settled and accompanied by a Confidentiality Order. The respondent maintains that the applicant filed an application with the CFSRB regarding the actions of the Society, which included a complaint that is nearly identical to the Application before this Tribunal. This led to a full settlement agreement reached on November 26, 2015.
37Although the respondent argued in its pleadings that the Application should be dismissed under s. 45.1 of the Code because another proceeding has appropriately dealt with the substance of the Application, at the preliminary hearing the respondent noted that the CFSRB proceeding is confidential. It maintains that in light of the strength of the arguments regarding delay and the lack of available evidence to show a connection with a Code related ground, it does not believe that it is necessary to consider this argument. As a result, the respondent noted that it did not request a tribunal Order for the release of the confidential information.
analysis and decision
38I acknowledge that the applicant and his spouse went through a very difficult ordeal after the birth of their child. However, I find that the Application is outside of the Tribunal’s jurisdiction because it is untimely under s. 34 of the Code. Consequently, the Tribunal need not address whether there is no reasonable prospect that the Application or part of the Application will succeed or whether there is another proceeding that has appropriately dealt with the substance of the Application.
Timeliness of Application
39Section 34 of the Code states in part:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
40Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondents. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.
41The applicant indicates in the Application that the last incident occurred on November 20, 2015. He filed the Application on October 20, 2016. He explained that in his view the last incident is the date upon which the CFSRB ordered the Society to provide the required documents to pursue the Application before this Tribunal. The documents in question were the Society’s Safety Assessment dated July 7, 2015 and the Society’s Risk Assessment dated July 22, 2015.
42I do not concur that the last incident occurred on November 20, 2015.
43The alleged Code violations listed in the Application occurred as follows:
a. On July 6, 2015, the Intake Worker for the Society attended at SickKids with the police. The applicant alleges that, based on her profiling techniques, she assumed that the applicant and his spouse may have something to do with the fracture. The applicant maintains that the Intake Worker asked them inappropriate questions about their place of origin and language spoken. The applicant also believes that the Intake Worker inappropriately considered their age and the fact that they do not have family support in Canada. He maintains that this fits the Society’s profile of those who hurt their own babies.
b. On July 8, 2015, the Society’s Intake Worker drafted a VWA that she asked the applicant and his spouse to sign. The applicant maintains that some of the content of the VWA inappropriately referred to their immigration status and age.
c. The applicant alleges that the Society’s Intake Worker advised them that she would have to come announced and unannounced into their home. She advised colleagues to report any suspicious activities or departures from the country with the baby and she coerced the applicant and his spouse to sign documents giving her access to confidential medical information.
44I note that the applicant makes no allegations that there were Code-based violations after July 16, 2015. He admitted at the preliminary hearing that following July 16, 2017, the Society cancelled the court date and amended the VWA to remove the allegedly offensive comments about the immigration status and the age of the applicant and his spouse. The applicant also observed at the preliminary hearing that after that date, the Society treated him and his spouse professionally and properly. Even though the Society remained involved in the case until the end of October, 2015, the applicant makes no allegations that the Society acted in violation of the Code between July 16, 2015 and October 23, 2015.
45In addition, on August 13, 2015, the applicant and his spouse signed the August 5, 2015 VWA that had been drafted cooperatively with the Society. The applicant makes no allegations that the signed VWA was discriminatory pursuant to the Code.
46I find that the date of the last incident is July 16, 2015, the date when the Society, including the Intake Worker, watched the video with SickKids representatives and the police and heard the police’s view on the incident. The last incident occurred more than 15 months before the applicant filed the Application.
47The issue I must therefore consider is whether the delay was incurred in good faith. The Tribunal has held that applicants have a “fairly high onus” in providing explanations for delay: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. In determining the issue of good faith, the Tribunal has considered factors such as the duration of the delay; whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110, and Doyle v. Canarm, 2009 HRTO 674.
48The applicant explained that he waited to file his Application because he had not received the relevant documentation from the Society. The applicant states that he received the documents in January 2016 as a result of a November 2015 CFSRB Order.
49It is well established that waiting for documentation or evidence to support an allegation does not extend the limitation periods under the Code. See Zawadowski v. DB Schenker of Canada Limited, 2017 HRTO 614; Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224, at para. 13, and Iyirhiaro v. Toronto Transit Commission, 2011 HRTO 462, at paras. 11-12.
50I find that the applicant had, by the end of August 2015, all the information required to file an Application before this Tribunal. He filed a complaint letter, dated August 27, 2015, with the Society explaining his concerns about the alleged discriminatory incidents and the way the Society had performed its investigation. The complaint was based on the same facts as those included in the Application.
51In the circumstances, I find that the applicant has not established that the delay in filing the Application was incurred in good faith. The Application is outside of the Tribunal’s jurisdiction because it is untimely under s. 34 of the Code.
52The Application is dismissed.
Dated at Toronto, this 17th day of November, 2017.
“Signed by”
Josée Bouchard
Vice-chair